Category: Legal Commentary

Physician  freedom of conscience in Saskatchewan

Sean Murphy*

Abstract

Physician Assisted Dying adequately accommodates both physician freedom of conscience and patients’ access to services. It demonstrates that the College of Physicians and Surgeons of Saskatchewan could have taken the same approach to freedom of conscience in relation to other procedures and produced a satisfactory policy on conscientious objection.

Conscientious Objection is ambiguous with respect to effective referral and polemical in its treatment of a physician’s traditional obligation to render assistance in an emergency. It demonstrates the authors’ intention to suppress physician freedom of conscience by compelling them to provide or facilitate morally contested procedures, as well as the intricate wordplay necessary to achieve that end. . . [Full text]

Quebec law and freedom of conscience for health care professionals

Sean Murphy*

Unlike other Canadian provinces, Quebec codes of ethics for health care professionals are enacted by provincial statute. Quebec is also unique in having a provincial euthanasia law, which includes a protection of conscience provision for health care professionals specific to that service.

Freedom of conscience for services other than euthanasia
Physicians

The Code of Ethics for Physicians1 and the gloss on the Code by ALDO Quebec,2 an authoritative document, require objecting physicians to advise patients of the consequences of not receiving the contested service, and “offer to help the patient find another physician.” They are not obliged to help the patient find someone willing to provide the contested service. Objecting physicians are normally quite willing to explain how patients can find other physicians or health care professionals. . . [Full text]

Quebec’s Act Respecting End of Life Care

Reportable and non-reportable euthanasia

Sean Murphy*

Introduction

Quebec’s euthanasia law, the Act Regarding End of Life Care (ARELC), permits two kinds of euthanasia, distinguished here as reportable and non-reportable euthanasia.

Reportable euthanasia is identified as “medical aid in dying” in ARELC.1 Only physicians may administer a lethal substance, and only to a legally competent person who is at least 18 years old, meets other criteria and personally gives informed consent. Physicians must conform to procedural guidelines and reporting requirements. Most people probably believe that this is the only type of euthanasia authorized by the law.

Non-reportable euthanasia is not explicitly identified in the law, but is permitted for legally incompetent patients (including those under 14 years old) who are not dying. Substitute decision makers acting under the authority of Quebec’s Civil Code2 can order them to be starved and dehydrated to death. There are no procedural guidelines, no reporting requirements, and it appears that the order can be carried out by anyone responsible for patient care.3 All of this was incorporated into ARELC by a revision of the original text.

Note that section 50, the protection of conscience provision in ARELC for health care professionals, pertains ONLY to reportable euthanasia. The Act does not recognize the possibility of conscientious objection by health care professionals unwilling to participate in euthanasia by starvation and dehydration. . . [Full text]

Pharmacist  freedom of conscience in Alberta

Sean Murphy*

Code of Ethics (2009)

A protection of conscience provision is found in the Alberta College  of Pharmacy Code of Ethics (2009).1 Objecting pharmacists are directed

  • to help patients “obtain appropriate pharmacy services from another pharmacist or health professional within a time frame fitting the patient’s needs” (clause 3);
  • to arrange their practices so that “the care of [their] patients will not be jeopardized” when they refuse to provide services for reasons of conscience (clause 4);
  • to continue “to provide professional services” until another pharmacist or health professional has assumed responsibility (clause 1).

The text seems to presume that the objecting pharmacist need not provide the morally contested service. The requirement to continue to provide “professional services” until someone else assumes responsiblity does not impose an obligation to provide it if another professional is not available within the relevant time frame. . . [Full text]

Conscience, euthanasia and assisted suicide in Manitoba

The Medical Assistance in Dying (Protection for Health Professionals and Others) Act

Sean Murphy*

Manitoba is the only Canadian province with a stand-alone statute that protects health care professionals who refuse to provide services: the Medical Assistance in Dying (Protection for Health Professionals and Others) Act (MAiD Act).1

The MAiD Act is a procedure-specific law applying only to euthanasia and assisted suicide. It protects all regulated professionals who refuse to provide or “aid in the provision” of the procedures from professional disciplinary proceedings and adverse employment consequences because they have refused. They remain liable for other misconduct in relation to the refusal.

The Act protects those who refuse for any reason; refusal need not be based on any specific ground. Hence, it equally protects refusal for reasons of personal discomfort, distaste or fear and refusal based on moral or ethical objections.

“Aid in the provision” is not defined. A narrow reading could limit protection against coercion to acts closely associated with the administration of a lethal substance, like inserting an IV line or dispensing lethal drugs. A broad reading could extend it to include facilitation by referral or other means. However, based on the Janaway2 and Doogan3 cases in the United Kingdom (in which the key term, “participate,” was restricted to “hands on” activity), a narrow reading of “aid in the provision” is possible.

Professional obligations in relation to refusal are untouched by the law. Regulators remain free to specify obligations that do not prevent or conflict with refusal to provide or aid in the provision of euthanasia and assisted suicide. Based on a narrow interpretation of “aid,” this could include facilitation by referral to an EAS practitioner. This would be unacceptable to objecting professionals who consider that to entail complicity in killing patients.

Notes:

1.  Medical Assistance in Dying (Protection for Health Professionals and Others) Act , CCSM c M92.

2.  R v Salford Health Authority, Ex p Janaway [1989] AC 537.

3.  Greater Glasgow Health Board (Appellant) v Doogan and another (Respondents) (Scotland) [2014] UKSC 68 at para 37—38.